Stoehrer v. Brooklyn & Queens Transit Corp.

Order denying defendant’s motion to vacate judgment and to grant a new trial on the ground of newly-discovered evidence reversed on the law and the facts, with costs, and motion granted. In our opinion, the evidence discovered by defendant after the trial, in respect to the plaintiff’s physical condition before the accident in question, is material on the question of plaintiff’s damage, and is not cumulative; and it cannot be said that defendant was not reasonably diligent in preparing for trial. Lazansky, P. J., Young, Scudder, Tompkins and Davis, JJ., concur.